Judgment 1. The prosecution case in brief is that one Satpal son of Tek Chand has five daughters and one son. On the night intervening 27/28-10-97 at about 8-30 p.m. his daughter Rachna aged about 8 years had gone out in the street for answering the call of nature along with his other daughter Tanuja aged 5 years. Tanuja came back and told him that someone had seated Rachna on a cycle and pedalled away. Satpal and other people of the Mohalla searched Rachna here or there. They could not, however, lay their hands on Rachna. At about 10 p.m. a Sikh gentleman brought Rachna in a rickshaw. He and his other mohalledars heaved a sigh of relief that after all Rachna had returned. Thereafter, his wife took Rachna inside. She removed her underwear and told him (Satpal) that she had been subjected to rape. He and his wife took Rachna to a doctor for treatment. That doctor instructed them to take the girl to Civil Hospital, Jalandhar. They accordingly took Rachna to Civil Hospital, Jalandhar where she was admitted. Satpal went out in search of that person who had enticed Rachna and had taken her on a cycle. Satpal reported the matter to the police vide his statement Ex. PR on the basis of whcih case FIR No. 162 was registered at PS Division No. 3, Jalandhar under S. 363/366/376, IPC. During investigation, statement of Rachna was recorded. According to her, she was abducted by a boy aged 22-23 years who had seated on the frame of the cycle. He kept her giving beating on the way and she kept raising raula. Thereupon, he gagged her mouth and took her in the fields outside the city and raped her. After he had raped her, he seated her on a rickshaw, and he gave Rs. 10.00 to that rickshaw-wala as rickshaw charges. He directed him that he should keep seven rupees and give the remaining three ruppes to her. He further instructed him that he should drop her near Domoria pull. She further stated that she could identify her ravisher. She could identify that rickshaw-wala also. At Civil Hospital, Jalandhar, she was medically examined. Dr. Harpreet Mann, PW/4 stated that she gave her age as 7 years. She was a small girl of average build and nutrition. Her axillary and pubic hair were not developed. She further stated that she could identify her ravisher. She could identify that rickshaw-wala also. At Civil Hospital, Jalandhar, she was medically examined. Dr. Harpreet Mann, PW/4 stated that she gave her age as 7 years. She was a small girl of average build and nutrition. Her axillary and pubic hair were not developed. Breast buds were also not developed. Menarchea not started. She found the following injuries :- 1. Bluish reddish contusion of 2 x 1.5 cm on the left cheek. 2. Reddish contusion 3 x 3 cm on the left breast just below the nipple. 3. Genital examination was done in O.T. under catemine anaesthesia. Bleeding per vagina was profusely bleeding. Hymen was completely torn and was bleeding profusely. Multiple vaginal tears were present - bleeding profusely. Posterior vaginal ear extending to the perineum upto anal margin (2nd degree perinneal tear) also bleeding profusely. 2. She prepared two vaginal smear slides and took two vaginal swabs and sent them for chemical examination for detection of semen. She stated that the girl appeared to have been subjected to sexual intercourse. Chemical examiner vide report Ex. PE found semen in vaginal stides, underwear and frock. 3. Dr. Ajay Sahni medically examined Rakesh Kumar alias Kala. His primary sexual character i.e. penis and testes were fully developed and secondary sexual characters i.e. beards, moustaches, public and axillary hair were also fully developed. In his opinion, there was nothing to suggest that he was not capable of performing being sexual intercourse. Dr. S. K. Sharma found Des Raj accused also capable of sexual intercourse as he found that his testes were normal and present in its sacks. Penis was developed and smegma was present. Prepuce could be retracted. pubic hair was present. Dr. Sudesh Dadra Medical Officer, Civil Hospital, Jalandhar stated that on 27-10-97 Rachna daughter of Satpal was admitted in Gyne section of Civil Hospital, Jalandhar. He also stated that he sent ruqa Ex. PH to the incharge, Police Station, Division No. 3, Jalandhar on 11-20 p.m. on admission of Rachna. Rachna remained admitted upto 15-11-97. On 29-10-97. House Surgeon had declared Rachna fit to make statement. 4. Rakesh Kumar alias Kala and Des Raj were challenged under S. 363/366/376, IPC by PS Division No. 3 Jalandhar. Case was committed to the Court of Session by Judicial Magistrate First Class, Jalandhar vide order dated 16-5-98. 5. Rachna remained admitted upto 15-11-97. On 29-10-97. House Surgeon had declared Rachna fit to make statement. 4. Rakesh Kumar alias Kala and Des Raj were challenged under S. 363/366/376, IPC by PS Division No. 3 Jalandhar. Case was committed to the Court of Session by Judicial Magistrate First Class, Jalandhar vide order dated 16-5-98. 5. Both the accused were charged under S. 363, 366, IPC. Rakesh Kumar alias Kala was charged under S. 376, IPC as well. They pleaded not guilty to the charge and claimed trial. On the conclusion of the trial, learned Sessions Judge, Jalandhar found the charge proved against Rakesh Kumar alias Kala under S. 366/376, IPC. He accordingly vide order dated 26-4-2001 convicted him and sentenced him to undergo RI for 5 years and to pay fine of Rs. 5,000.00 in default of payment of fine to undergo further RI for 3 months under S. 366, IPC. He sentenced him to undergo RI for 10 years and to pay fine of Rs. 5,000.00, in default of payment of fine to undergo RI for 3 months. He ordered these sentences to run concurrently. Des Raj was, however, acquitted. 6. In this case, there can be no manner of doubt that Rachna daughter of Satpal aged about 8 years was raped on the night of 27-10-1997 at 8-30 p.m. Her medical examination by Dr. Harpreet Mann at Civil Hospital, Jalandhar at 11 p.m. speaks for itself. Her vagina was profusely bleeding. Hymen was completely torn and bleeding profusely. Multiple vaginal tears were present - bleeding profusely. Posterior vaginal tear extending towards perineum upto anal margin (second degree perineal tear) also bleeding profusely. Presence of semen on vaginal slides, underwear and frock taken together with the state of vagina unerringly suggests that she was subjected to rape by a full grown adult ruthlessly. She was admitted to the hospital on 27-10-97 and was discharged on 15-11-97. On 21-11-97, she started complaining of severe pain in pelvis area. She was given treatment. Details of the treatment and her condition as shown in bed head ticket Ex. PJ suggest that it was an act of savage and a brute which tore her vagina and hymen. 7. Now the question that arises is who was the person who subjected her to rape. Rachna PW. She was given treatment. Details of the treatment and her condition as shown in bed head ticket Ex. PJ suggest that it was an act of savage and a brute which tore her vagina and hymen. 7. Now the question that arises is who was the person who subjected her to rape. Rachna PW. 9 who is the victim of sexual assault on her stated that it was Rakesh Kumar accused who took her on cycle to his house, gagged her mouth and raped. She stated that the accused had urinated in her private part on the stomach. He got blood out of her private parts by fingering. She stated that the accused did not put penis in her private part. She was declared hostile at the request of Public Prosecutor for the State who cross-examined her. On cross-examination by the Public Prosecutor, she stated that the accused took her to the fields where there is a house. Accused put his penis in her vagina, blood came out of her vagina as the accused had put his penis in her vagina. She describes the penis as an instrument for urinating. In her cross-examination by the defence, she stated that she had never seen Rakesh Kumar accused before this occurence and she was seeing him only on 13-9-2000 after the day of occurrence. On 13-9-2000, she was examined in Court. It appears that in her examination in Chief, she had stated that the accused did not put his penis in her private part, either she did not want to state that her modesty was interfered with. How could blood come out of her vagina by fingering it only. Blood could come out of her vagina only if penis had been thrust in her vagina. Her vagina would not have bled had it been a fully developed vagina. 8. It is submitted by the learned counsel for the appellant that the accused was not put up at test identification parade. It was submitted that he ought to have been put up at test identification parade because neither Rachna nor her father Satpal had known him before. Suffice it to say, it was for Rakesh Kumar alias Kala accused to have claimed identification parade during investigation. It was submitted that he ought to have been put up at test identification parade because neither Rachna nor her father Satpal had known him before. Suffice it to say, it was for Rakesh Kumar alias Kala accused to have claimed identification parade during investigation. If he did not claim to be put up at test identification parade during investigation, he cannot be allowed to take advantage of the omission on the part of the prosecution to put him at test identification parade. 9. Faced with this position, learned counsel for the appellant submits that the sentence passed upon the appellant be reduced. He submits that the sentence of 10 years imposed upon him is harsh as he is 22-23 years old. He will remain in jail for 7-8 years more and will thus spend much part of his youth there. Suffice it to say, he behaved like a savage and a brute. He committed rape on a girl aged 8 years whereby her vagina was torn. Hymen was torn. Her vagina bled profusely. She remained hospitalised for about 15 days for injury to her vagina. She was put on antibiotics and other medicines. At times, she was feeling severe pain in her vagina. Her vagina had to be stitched. No leniency can be shown to such a brute and a savage. 10. For the reasons given above, this appeal fails and is dismissed.